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Marion Renate Rodewald v. Mrs Elizabeth Taylor [2011] CSOH 5


In this action, the pursuer sought payment by the defender for certain sums averred to have been paid by tenants of a property known as “Corshellach”, which were paid to the defender and retained by her. The basis upon which the rental payments were sought by the pursuer was that the defender had in terms of a contract been acting at the relevant time as agent for the pursuer in relation to the letting of Corshellach. It was accordingly alleged that she had received said rental payments in a fiduciary capacity. The pursuer argued that in these circumstances, the defender was not entitled to retain the sums, but had to remit them to the pursuer.
In the defender's motion for dismissal of the action, counsel for the defenders argued that not all parties were correctly called to the action, with the defender's partner not being a party to the action, but featuring extensively in the averments. It was moreover submitted that the pursuer's averments were lacking in specification. In particular, it was submitted that the averments failed to specify the contract that allegedly formed the basis of the action and exactly who the parties might be to any agreement. It was argued that this caused material prejudice to the defender's ability to respond to the pursuer's case.
Having heard submissions, the Lord Ordinary sustained the defender's motion. Noting that in order to give a defender fair notice of a case made against them based on a contractual agreement, averments would require to specify (a) who were the parties to the alleged contract; (b) where the contract was entered into; (c) when the contract was entered into; (d) the terms of the contract; and (e) the form of the contract. The Lord Ordinary found that this had not been done in this case, and that the pursuer's averments failed to specify the foundation of her case. It was moreover unspecified how the defender came to be in the position of agent for the pursuer, and the basis for any agreement there under. Describing the averments as “mystifying”, the Lord Ordinary concluded that the pursuer's case was wholly lacking in specification as regards the material issues and that were the matter to continue, the defender would be materially prejudiced by this. The Lord Ordinary dismissed the action.